The proposed Surrogacy Bill is draconian and flies in the face of Article 14 and 21 of the constitution

~By Parmanand Pandey

Filmmaker Karan Johar has made us all aware how ecstatic he is at having become the father of twins born through a surrogate mother. As a single father, he would have been well aware that there is a Surrogacy Regulation Bill pending in parliament which, once passed, will make his actions illegal and even fetch him a 10-year jail term. Johar, and other celebrities like Aamir Khan and Shah Rukh Khan who also have children born through surrogacy, are fortunate since the proposed bill, due to be passed shortly, would have branded them as criminals. In fact, the bill is not just draconian, it flies in the face of Article 14 and 21 of the constitution which guarantees “equality before the law and equal protection of laws to all” and “protection of life and personal liberty of all persons”.

The Surrogacy Regulation Bill proposes a blanket ban on commercial surrogacy and restricts ethical and altruistic surrogacy to legally wedded infertile Indian couples who have been married for at least five years. The husband must be between 26 and 55 years and the wife, between 23 and 50 years. Overseas Indians, foreigners, unmarried couples, single parents, live-in partners, gay and lesbian couples are barred from commissioning the services of a surrogate mother. Only a married blood relative, who must have herself borne a child and is not an NRI or a foreigner, can be a surrogate mother, but only once in a lifetime. Indian couples with biological or adopted children are prohibited from having children through surrogacy. Commercial surrogacy will result in a jail term of at least ten years and a fine of up to Rs 10 lakh.

In India, surrogacy has certainly been exploited and misused but the proposed Bill is like throwing out the baby with the bathwater, literally. Surrogacy has thrown up many contentious questions of law and ethics. There are innumerable examples when children have been born through niyog, a type of surrogacy. However, with the development of medical science, surrogacy has assumed the form of a bazaar leading to the exploitation of poor, illiterate women, mostly from rural backgrounds. Women are often persuaded to participate by their spouses or middlemen to earn easy money but they have no rights when it comes to a decision regarding their own bodies.

Ideally, the state cannot interfere in the prerogative of any person to have children, naturally or through surrogacy.

Surrogacy is of two types: altruistic and commercial. A woman who bears a child for her infertile sister or a mother who gives birth to her infertile daughter’s child is altruistic but when a woman allows her womb-on-rent, it becomes commercial surrogacy. India had become the hub of “surrogacy tourism” for nearly two decades and to curb it, the cabinet approved the Surrogacy Regulation Bill, 2016, yet to be enacted into law by parliament. The bill is still being examined by a parliamentary standing committee and is likely to be finalised soon. Had this bill become an act, Karan Johar and others of his ilk like Tusshar Kapoor, Shah Rukh Khan and Aamir Khan would have been in trouble.

The Supreme Court has also been flooded with a bunch of petitions seeking direction to make representations before the parliamentary committee. They want inclusion of specific provisions and so far, the Court has ruled in favour of only one of the petitions. What could inspire legal challenges is the fact that the proposed law is very stringent and flies into the face of the two articles mentioned in the constitution earlier.

Therefore, restricting conditional surrogacy to married Indian couples and disqualifying others on the basis of marital status, sexual orientation and age does not qualify the test of equality. The right to life includes the right to reproductive autonomy like those of procreation and parenthood. Hence, ideally, the state cannot interfere in the prerogative of any person to have children, naturally or through surrogacy. Infertility cannot be a prudent condition to undertake surrogacy an Alternative Reproductive Technology. Barring of foreigners to prevent the misuse of surrogacy could prove to be counterproductive because the yardstick governing domestic altruistic surrogacy could lead to corruption and exploitation, pushing surrogacy into unethical hands and leading to an underground abusive trade in surrogacy.

What happens to the family of the surrogate mother if she loses her life in the process of childbirth?

Once altruistic surrogacy is legalised, there is no proof that it will not lead to a commercial market. If it is legalised, then a woman will bear a child as laid out in the contract and the black market will certainly develop. Another question which is often asked is whether altruistic surrogacy is more humane or is it just like trafficking. The distinction between altruistic and commercial surrogacy is, in fact, very thin because in both cases, a woman is reduced to a “container or vessel”. Instead of having an existential and spiritual experience, the woman’s pregnancy is made to serve others.

There are many more issues which have not been addressed in the proposed bill such as what would be the rights of the child if the adoptive parents reject it midway or after birth or if the surrogate mother faces health issues during and after pregnancy. What happens to the family of the surrogate mother if she loses her life in the process of childbirth? Why should those who have married late in life wait for five years till they can opt for surrogacy? What about single women who don’t want to marry but want to be mothers nevertheless. Surrogacy agreements are made under the Indian Contract Act of 1872 and other applicable laws, but in practice, they are often violated. The proposed Bill, once enacted, is certain to open a Pandora’s Box.

—The author is an Advocate-on-Record
in the Supreme Court